Amgen Inc. v. F. Hoffmann-LaRoche LTD et al Doc.

445
Case 1:05-cv-12237-WGY Document 445 Filed 05/23/2007 Page 1 of 3

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

AMGEN INC., )
)
Plaintiff, )
v. ) Civil Action No.: 05 Civ. 12237 WGY
)
F. HOFFMANN-LA ROCHE LTD, ROCHE )
DIAGNOSTICS GmbH, and HOFFMANN- )
LA ROCHE INC., )
Defendants. )
)
)

ROCHE’S MOTION FOR LEAVE TO AMEND ITS ANSWER

TO AMPLIFY ALLEGATIONS OF AMGEN’S INEQUITABLE CONDUCT AND TO
DEFINE RELEVANT MARKETS FOR PURPOSES OF ANTITRUST
COUNTERCLAIMS

Defendants F. Hoffmann-La Roche Ltd, Roche Diagnostics GmbH, and Hoffmann-La

Roche Inc. (collectively “Roche”) submit this motion seeking leave to amend their answer to

include additional allegations of Amgen’s inequitable conduct during the prosecution of its

asserted patents, and to define relevant markets so as to conform Roche’s antitrust counterclaims

to the evidence. The proposed amended answer, redlined to show added material, is attached as

Exhibit A.

Roche’s proposed amendment would amplify its previously alleged inequitable conduct

defense and antitrust counterclaims based on new facts obtained during discovery. As every

factual allegation to be added has been disclosed to Amgen in complete detail as the supporting

facts became known to Roche during discovery and/or in expert reports, Amgen cannot in good

faith claim surprise and would not be prejudiced by having Roche’s allegations set forth in an

amended pleading.

Dockets.Justia.com
 Case 1:05-cv-12237-WGY Document 445 Filed 05/23/2007 Page 2 of 3

Thus, Roche respectfully asks this Court for leave to amend its answer to include

additional allegations of Amgen’s inequitable conduct and to better define markets relevant to

the antitrust counterclaims. In support of this motion, Roche submits the accompanying

memorandum of law.

CERTIFICATE PURSUANT TO LOCAL RULE 7.1

I certify that counsel for the parties have conferred in an attempt to resolve or narrow the
issues presented by this motion and that no agreement could be reached.

/s/ Keith E. Toms__

Keith E. Toms
Dated: May 23, 2007
Boston, Massachusetts Respectfully submitted,

F. HOFFMANN-LA ROCHE LTD,

ROCHE DIAGNOSTICS GMBH, and
HOFFMANN-LA ROCHE INC.

By their attorneys,

/s/ Keith E. Toms

Lee Carl Bromberg (BBO# 058480)
Robert L. Kann (BBO# 258025)
Julia Huston (BBO# 562160)
Keith E. Toms (BBO# 663369)
Nicole A. Rizzo (BBO# 663853)
BROMBERG & SUNSTEIN LLP
125 Summer Street
Boston, MA 02110
Tel. (617) 443-9292
ktoms@bromsun.com

Leora Ben-Ami (pro hac vice)

Mark S. Popofsky (pro hac vice)
Patricia A. Carson (pro hac vice)
Thomas F. Fleming (pro hac vice)
Howard S. Suh (pro hac vice)
Peter Fratangelo (BBO# 639775)
Vladimir Drozdoff (pro hac vice)
David L. Cousineau (pro hac vice)
KAYE SCHOLER LLP
425 Park Avenue
New York, New York 10022
Tel. (212) 836-8000

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 Case 1:05-cv-12237-WGY Document 445 Filed 05/23/2007 Page 3 of 3

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non registered participants on the above date.

/s/ Keith E. Toms

Keith E. Toms

03099/00501 663524.1